Homemade videos are the best gaming ads out there, yet they're taken down.

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Once it became simple to record, upload, and share digital video over the Internet, gamers quickly became interested in recording themselves playing games—especially with humorous or profane commentary. The phenomenon of creating and sharing so-called "Let's Play" videos took off around 2006 and today has its own channel on YouTube. Practitioners of this self-recording art sometimes refer to themselves as LPers for short.

Now, it looks like Let's Play videos are one more piece of content that's being caught up in YouTube's Content ID system. It's an automated copyright-enforcement system that's been glitchy from the start and often criticized for taking down legitimate content. Remixes of cultural icons have been taken down with no good explanation, as well as NASA content that should be in the public domain. Political satire didn't stand a chance either. Until October, there wasn't even a meaningful appeal system for owners of wrongly removed videos.

It looks like LPers are the latest victims. A prolific LPer named Zack Scott took to Facebook yesterday to complain that several LPers had experienced takedowns of the videos including Nintendo games. A company fan like himself wasn't the right target for automated takedowns, Scott complained, and he said he'd stop playing Nintendo games until the situation was straightened out. "It jeopardizes my channel's copyright standing and the livelihood of all LPers," he wrote.

Scott continues:

I got a Wii U at midnight when I already had one in the mail. I've been a Nintendo fan since the NES, and I've owned all of their systems... I think filing claims against LPers is backwards. Video games aren't like movies or TV. Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don't need to see it again. When I see a game that someone else is playing, I want to play that game for myself! Sure, there may be some people who watch games rather than play them, but are those people even gamers?

After Scott's complaint was reported by GameFront, Nintendo responded—but didn't really add much clarity to the situation. The blocks would stop, but Nintendo would instead append ads to videos that featured its content if the images or audio reached "a certain length." How long? Who knows. Nintendo wants its content "shared across social media channels in an appropriate and safe way," the company said. The company statement goes on:

For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to, or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.

The LPers whose videos have run smack into Nintendo's copyright policy are facing two problems. First, because fair use rules are so murky and decided on a case-by-case basis, an automated system like ContentID is very likely to engage in overreach.

Second, the speech of the fans who love Nintendo is actually unfairly being censored (or in this case, monetized) by a copyright owner. This is a situation where more negative speech would almost surely be protected. If the LPers were highly critical of the companies or products they were discussing, or were provoking them with parody, their speech would likely be protected as fair use. It's the same paradox faced by fan-fiction writers, elegantly summed up by Cory Doctorow in a 2009 column entitled "When love is harder to show than hate."

Homemade videos about gaming are about the best ads a company like Nintendo could hope for. Nintendo's attempt to control and monetize these using ContentID may be a net negative for them in the long term. "[I]t's you LPers who make us want to buy them for ourselves," a gamer named Nicole Perez wrote on Scott's Facebook page. "You make the games look fun and amazing; 150 times better than any damn trailer they will put out."

146 Reader Comments

This in my opinion is a obvious case of fair use, and companies abusing the law. These videos should fall under fair use for two main reasons. The most important of which, is that they in no way harm the commercial viability of the product, they neither reduce the value, nor the market for the product. This has been ruled the "the single most important element of fair use" by the supreme court. The second reason is that the work is not a replacement for the game in any way, it is a transformative use of the game, this is another major factor pointing to fair use under US copyright law.

Another reason such use of the games is legal, and this is not directly copyright law but rather in the constitution, is that such use of copyright does not fall within the limits of "promote[ing] the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". The constitutional exception allowing copyright and patent laws to exist. As this use of copyright law in no way promotes anything, it is unconstitutional even if it did follow the statute and case law.

*Disclaimer: I am not a lawyer, this is an opinion and not legal advice, the only legal advice I will give is talk to a lawyer.

This is really bad PR for Nintendo. Sure, they may own intellectual property that these people are using to make their videos, but unless I'm mistaken those people paid Nintendo licensing fees (purchased the game) for that content. However, Nintendo doesn't own and hasn't licensed the uploaders intellectual property (the voiceover) and is taking ad revenue from some of the people that directly support the company.

I'm a huge Nintendo fan, and I'm sorry their new system isn't doing so well, but poking your customers and supporters in the eye with a stick is not good for business. I own nearly every Nintendo system, excluding the Wii and Wii U. I was going to pick up a Wii U to support a company I love, but if this is the way they're going to treat their customers then hell with them.

And yes, imo the type of let's plays Jesse Cox makes are probably running afoul of current copyright laws but it's probably being left alone because it is great advertising. As far as I know he does not have any agreements with publishers that allows him to make let's plays, if he does then please link the source.

No source specifically, but he is part of The GameStation (like TB and others) and they do all that legal junk for him, so I presume what he produces is covered.

It's been linked in this discussion above (and downvoted for... some reason. I really wish people had to downvote with comment, it would make this kind of discussion so much clearer), but this is Jessie and TB talking about it on a podcast: http://www.youtube.com/watch?feature=pl ... EY#t=1075s"

Yeah, I watched that one when it came out. TGS protects them in case of legal trouble but... well... personally I have a very hard time understanding why ubisoft would let him(Jesse) rush through blood dragon in a week and blizzard let him rush through HoTS in a week. It would make far more sense that they'd ask for an episode every second day or somesuch (assuming there were a licensing deal signed). And to my knowledge none of the people on gamestation ever said 'yay, we got a deal so I can record this game' it's allways been; 'this looks shiny, let's try it'.

And yes, imo the type of let's plays Jesse Cox makes are probably running afoul of current copyright laws but it's probably being left alone because it is great advertising. As far as I know he does not have any agreements with publishers that allows him to make let's plays, if he does then please link the source.

No source specifically, but he is part of The GameStation (like TB and others) and they do all that legal junk for him, so I presume what he produces is covered.

It's been linked in this discussion above (and downvoted for... some reason. I really wish people had to downvote with comment, it would make this kind of discussion so much clearer), but this is Jessie and TB talking about it on a podcast: http://www.youtube.com/watch?feature=pl ... EY#t=1075s"

Yeah, I watched that one when it came out. TGS protects them in case of legal trouble but... well... personally I have a very hard time understanding why ubisoft would let him(Jesse) rush through blood dragon in a week and blizzard let him rush through HoTS in a week. It would make far more sense that they'd ask for an episode every second day or somesuch (assuming there were a licensing deal signed)

They're not usually being contracted to do a job, although now and then they do on their own terms, they're getting permission to do what they like with the content by jumping through the legal hoops to do so. To throw out my MST3K example again, you're essentially asking: "Why would anyone sign away the rights to their movie so it can be skewered? That doesn't make sense...", and the answer is, as it tends to be: "Money talks."

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And to my knowledge none of the people on gamestation ever said 'yay, we got a deal so I can record this game' it's allways been; 'this looks shiny, let's try it'.

Jessie Cox just did right there WRT his Saints Row series: "People ask me why my Saints Row stuff stays up and theirs gets CC'd within seconds or days: it's because I signed a blood debt to a corporate executive"(rough quote, you want the exact one, watch the clip)

Why don't you hear that more more likely? Well, firstly, no one cares about process just the finished product and, secondly, since when has working within the system been something anyone wins from by bragging about online?

The modern consumer has gotten to be a tyrant who will punish companies in whatever way they can (including hacking) for adopting business practices that don't give them the warm fuzzies.[/quote]

Um, Consumers have options, and perhaps more importantly these days options to have a voice. So any company that refuses to engage with their customer base, in a co-creation of value way (Like they teach in marketing 101) is doing so at their own peril.

Nintendo is being very foolish here, this perhaps even more than the poor sales of the Wii U, makes me concerned for their long term longevity.

Oh and an example of the opposite behavior is Mojang, who actively engage with (and seek the opinions advice of) the Youtube Minecraft LP community. Which is probably considerably larger than one might imagine, and includes a number of people who actually produce such content full time.

Let's Plays have been responsible for my purchasing 3 titles so far (4 if you count Orcs Must Die 2, which I would never have been aware of if I hadn't purchased Orcs Must Die 1 due to watching a Let's Play of it). And I really don't spend much time on YouTube at all.

If a game is bad enough that watching a Let's Play turns you off it, then it's a GOOD THING for the consumer that they didn't drop money on it. There's far too much mediocre content out there already that companies spend big money misrepresenting to get people falsely enthused and willing to spend.

As far as watching the entire content of a game through Let's Play and thereby not needing to spend money on it... well... all I can say is that people willing to sit through literally hours of gameplay footage have a whole lot more free time on their hands than I do. I'd rather spend that time playing the game, you know?

That page explicitly describes Let's Plays as acceptable: "Video game content may be monetized if the associated step-by-step commentary is strictly tied to the live action being shown and provides instructional or educational value."

I'm not saying you should buy the product. I'm saying that running to an online forum to publicly castigate the company and to hand-wring about the fate of the poor people who just wanted to make money using the company's products is more a political impulse than a normal consumer behavior.

Frankly, I doubt that anyone other than an LPer really thinks "Nintendo doesn't support this niche social feature, so their games (regardless of quality gameplay) aren't worthy of a purchase." It's as though nothing at all should happen on the terms of the content creator (a profession formerly known as "artist").

A certain brand of consumers want to politicize the most petty stuff, and to boast of their hypothetically deep knowledge of multi-billion dollar business models on internet fora.

This in my opinion is a obvious case of fair use, and companies abusing the law.

Your argument is more about how it can't possibly hurt sales. It can. If the game doesn't look good, that can hurt sales. If the game is a genre piece, differentiated mostly by visuals, LPs can hurt sales. (for example, if I owned FarCry 3, I might be content just to watch Tomb Raider). If the game is primarily story driven, LPs can hurt sales (think Alan Wake or LA Noire).

I don't think the question of hurting sales is really the main legal concern though.

The question is who owns the sounds and images.

Take the MST3K argument others have made - that you can't just talk over a movie and distribute it freely, in this slightly modified form.

Instead of a traditional movie, imagine a movie that has two endings, where at some point, you have to chose which one by pressing a button. Does that eliminate the movie company's claim? What if there were 5 such points in the film? 50? I don't think it's clear that something becomes user-generated content strictly by introducing enough points of decision.

If the company chooses to "be cool", that's their right, but so is "being lame".

Incidentally, the "ownership" question brings up a great big question about games that hire outside contractors to produce art and music. The artist may not have signed away the rights to uncompensated broadcast (this is certainly the case for games like GTA). In this case the company may not have a choice in policing unauthorized use.

Before this I'd never even heard of LetsPlay or any of these other things (apparently I've been hibernating in a cave). The closest I assume is watching a few short youtube clips of people showing hidden items / doors / enemies or maybe a few other things for a few games.

With that said, Nintendo may *technically* be acting legally, but they are so sorely in need of more gamers that this is about the stupidest thing they could do. Going after people who show off your games to thousands of people...without costing you a cent? Are you kidding me? I honestly, truly cannot put myself in their shoes and see how they think this is hurting their business, or that they deserve to profit from these videos.

I don't understand; a video game is an interactive multimedia experience, a YouTube video is, well, a video. How is this considered use of Nintendo's intellectual property? It's like a musician claiming that a picture of their CD is file sharing.

I remember that Totalbiscuit (member of the Gamestation network) said that Sega was doing something similar. However, I think he said that they were just sending takedown notices. Apparently after 3 takedown notices, your youtube account is suspended from making ad revenue, IIRC. In reaction, TB and other gamestation members have been boycotting Sega games, which means that I don't see or hear about them, and then don't know they exist, so I don't buy them. Net negative for sure.

Or maybe you could just accept that it is their intellectual property and they can do whatever they want with it. Throwing a little tantrum because your copyright violation got removed is really really mature.

You are not entitled to anyone's intellectual property, get that into your smug head.

There's no tantrum. User finds products through a particular medium. Manufacturer has decided to prevent product from appearing in that medium. User doesn't find out about product. QED Manufacturer has lost ability to sell to that User.

I was referring to TB and etc's petty boycott. It is the copyright owner's rights to do what they want with their work.

As for their bottom line being affected by the absence of LPs, that has yet to be established.

How dare he! What an entitled little shit for exercising his right not to give money to people he disagrees with! How petty!

You should probably get it out of your own smug head that customers are worthless slime beholden to people who want to take their money. Note that last part: the copyright holder wants to take his money, without giving him the right to do something he wants. As in, the copyrighted product doesn't have the value for him to warrant using it. If that's not clear enough: you're a stranger demanding that someone pay for something because it was made, regardless of the value it offers. What's next? Am I a bad person for passing up on a used car whose owner never changed the oil? Not renting a building because the conditions of the lease don't let me do what I want? After all, they're the sellers, and they can do what they want; I have no right to ask them for anything!

tl;dr the only smug person is the one who thinks he's above making rational economic decisions.

While I'm reasonably certain that LPs are fair use, the article seemed to focus on it too much. YouTube is well known to take down or monetize for "IP owners" content that is fair use. They take the two pronged approach that as a private entity they can take down whatever they want and that they need to be proactive in enforcement to stave off further regulation.

amvakar: I think you're mistaking "not buying something I don't like" for "abstaining from buying products I do like from companies or individuals I don't like".

The first one is not a boycott.

For a lot of products this would be the case, but with intellectual property I'd argue they're the same because those individuals or companies I don't like can change what I do with the product even after I've paid them. The best example is probably always-on DRM for games: even if I do have a fast and stable Internet connection, the value of the purchase can shift wildly if there's a server issue, or if my ISP starts sucking, or if the servers get shut down completely. All of that is out of my control, and yet it would be illegal for me to attempt to work around such problems, so in every purchase I have to consider how bad the customer service is for a company.

The same thing applies here: even if they don't LP themselves, they may wish to have the right should they choose; that right is solely dependent upon the attitude of the company, so a boycott is the only way to send a message about the product.

Appologies, I should've only quoted that second sentence to be more clear. And yes, imo the type of let's plays Jesse Cox makes are probably running afoul of current copyright laws but it's probably being left alone because it is great advertising. As far as I know he does not have any agreements with publishers that allows him to make let's plays, if he does then please link the source.

He is a partner of TheGameStation, and any youtube or twitch game content producer you have heard of is also a member of one of the partner networks. The networks license the games, deal with the ad networks, and do all of the legal things necessary. It's simply not possible to monetize game content unless you are a partner, and they basically come and find you before the point where you would make any money anyway. Most of them don't talk about or publicize their network, but they all have them. The only people affected by this are people trying to make content without a network, which is stupid for anyone doing it seriously.

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Yeah, I watched that one when it came out. TGS protects them in case of legal trouble but... well... personally I have a very hard time understanding why ubisoft would let him(Jesse) rush through blood dragon in a week and blizzard let him rush through HoTS in a week. It would make far more sense that they'd ask for an episode every second day or somesuch (assuming there were a licensing deal signed). And to my knowledge none of the people on gamestation ever said 'yay, we got a deal so I can record this game' it's allways been; 'this looks shiny, let's try it'.

The publishers aren't (usually) paying for content, they are getting paid license fees for the use of the game. They aren't compulsory, but they might as well be. Just because they don't often talk about it doesn't mean it's not happening (it is). The same goes for twitch streamers showing ads, they are partnered and paying license fees.

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While I'm reasonably certain that LPs are fair us

They are not, just like putting a MST3K style commentary over a movie isn't fair use, and if you try to distribute it with the move, you will be shut down.

That page explicitly describes Let's Plays as acceptable: "Video game content may be monetized if the associated step-by-step commentary is strictly tied to the live action being shown and provides instructional or educational value."

the very next paragraph says "Videos simply showing a user playing a video game or the use of software for extended periods of time may not be accepted for monetization." This paragraph still allows people who are making walkthroughs and game critics from being persecuted. It does not however protect all the other LPs which do not fall under instructional/educational value, but are often made for the purpose of entertainment. Where the grey area might lie are in Multi-player games in which each user has a different experience.

The only agreement between reviewers and publishers are for distribution of early review copies where they enforce an embargo that usually ends a few days before the game is released. The embargo is there to make sure everyone gets a few days with the game rather than rushing out a review asap.

Unfortunately, the current use of this embargo includes making sure that no pre-orders are cancelled because of pre-release bad reviews (eg. Aliens: Colonial Marines).

As for Nintendo's stance, I find it very hard to believe that the benefits of their move (if any) outweigh the negative consequences. I wonder which genius "expert" advised them on this.

And which part of "Snippets of copyrighted programs" is not explicit enough? Hell you cannot even call it snippets at this point, it's the whole cake.

I read that to be "television programs," not software.

Program is probably the wrong word. Does anyone think of a commercial or movie as a program? "Copyrighted content" might be better, I don't know, and clearly I'm not a lawyer.

Software publishers have a copyright on the software and have trademarks on the characters used in software. They do not own copyrights on the visual output of such software. If this was the case, Adobe could then claim every image created by Photoshop belong to them. After all, what's the difference between a user clicking on a mouse to make a character jump versus clicking on a mouse to draw an image?

Like every other story about this issue, this has nothing to do with copyright laws or DCMA. It has everything to do with Youtube favoring big business. Legal under the law? Neither Youtube nor the companies blocking your content give a damn. That means stop using Youtube and run your own video hosting service in Iceland. Then everytime these fuckers complain, you send back a legal letter ripping them a new asshole.

I've been wondering when more companies would start throwing their weight around on this topic. LPs are very popular and can bring in a lot of ad revenue - which basically guarantees that the corporate bean-counters are brainstorming ways they can muscle in on the action.

I think that Let's Plays can be a fantastic source of word-of-mouth advertising, but I also think that game creators have the right to ask people not to make them. Part of the appeal of a game is the mystery of seeing where the game takes you. I can see how some would prefer to keep that sense of Wonder.

Personally, I'm very happy when someone makes a video showcasing one of my games. The more people that know about 'em the better.

nintendo has always been a bit non-understanding, family-friendly, and litigious in the same way apple is (they also share a love of the featureless white aesthetic). nintendo actively sued companies that made carts without authorization, all the way back to the NES. not much has changed, except nintendo's no longer on the cutting edge platform-wise. now, it's microsoft and sony that have taken over the territorial d-bag roles... even though nintendo retains some virility in this department.

honestly, i'm more annoyed i can't use youtube to provide citations for simpsons jokes. if the show hadn't turned to crap already, this transgression would have made me stop watching it.

All of Nitendo's recent platforms benefits mostly themselves and little for the other game devs, guess they are "expanding" this trend by benefiting themselves at the expense of their most hardcore fans.

I remember that Totalbiscuit (member of the Gamestation network) said that Sega was doing something similar. However, I think he said that they were just sending takedown notices. Apparently after 3 takedown notices, your youtube account is suspended from making ad revenue, IIRC. In reaction, TB and other gamestation members have been boycotting Sega games, which means that I don't see or hear about them, and then don't know they exist, so I don't buy them. Net negative for sure.

Thankfully, Nintendo's commanding lead in the next-gen console space clearly means that they have no need for the 'goodwill of their biggest fans' or 'publicity' or any such nonsense. You'd think that(especially with Sony rolling out their 'we put a button on the controller for you to post junk to youtube' initiative) that Nintendo would manage to at least avoid mishandling this gift(all they had to do was not touch it; but no), or even come up with something actually synergistic, not just extracting a few pennies worth of adsense. Unimpressive, Nintendo, unimpressive.

The ironic thing here is that Nintendo's own advertising is so incredibly lacking that they've probably sold more Wii Us through Let's Plays and such things than through their own advertising. The majority of parents that aren't into gaming I've spoken to either A) Don't know what a Wii U is or B) Think that they don't have to buy one because they already have a Wii.

From the article: "... to complain that several LPers had experienced takedowns of the videos including Nintendo games." (emphasis added)Nintendo is being singled out in the headline, but it seems that they're not the only one involved in these takedowns.

Do I smell a whiff of "desperation" about Nintendo? Monetising things that really shouldn't be is something of a bad sign...

From a personal perspective, I find that the "lets play" kind of videos generally get me fired up about buying a game rather than the opposite. I don't like spoilers generally, but if I'm not sure of a game I'll watch the first couple of levels or whatever and see what it actually plays like. It has led to purchases on my side as I find that watching a game actually play out in real time can tell me more than a review (which is highly subjective).

The only agreement between reviewers and publishers are for distribution of early review copies where they enforce an embargo that usually ends a few days before the game is released. The embargo is there to make sure everyone gets a few days with the game rather than rushing out a review asap.

Unfortunately, the current use of this embargo includes making sure that no pre-orders are cancelled because of pre-release bad reviews (eg. Aliens: Colonial Marines).

I wonder if we are not in a classic "disalignment of interests through incentives" situation, which unfortunately is way too common within big companies.

Let's imagine that the "hunt for copyright" is sub-contracted to an external specialist company. And let's imagine this company is paid (hence awarded) on 2 metrics :- The number of take-down notices- The amount of monetization they grab

In this case, the contracting company would have every possible reason to take-down everything to death, monetize as much as possible, without a dime of consideration for the potential negative consequences for the brand of its employer. The contractor wants its money now, so long for the future of Nintendo.

Now, it seems understandable if the job is done by an external company, but unfortunately, it also works if the job is done by an internal Nintendo department. Just measure the "performance" of the department using the above KPI, you'll get almost the same result : the department will work in its best interest, even if it hurts the company general interest.

It seems stupid from an external perspective, since we talk about Nintendo as if it was a single cognitive entity, but it is not : it's a collection of individuals and smaller teams, with sometimes diverging agenda.

That being said, if a department is greedy enough to look after its own selfish interest willingly against the general interest of its own company, it's a pretty bad sign of illness; such things can lead to death.